Amicus Curiae Brief — Chicago v. Morales

No. 97-1121

o> FILEL

SEP 11 1996

OFFICE OF THE CLERK

SUPREME COURT, U.S.

ek |

jn The

Supreme Court of the Gnited States

October Term 1997

CITY OF CHICAGO,

Vv.

Petitioner,

JESUS MORALES, et ai.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Illinois

BRIEF OF AMICI CURIAE NATIONAL BLACK

POLICE ASSOCIATION, CHICAGO NBPA, HISPANIC

NATIONAL LAW ENFORCEMENT ASSOCIATION, and

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

IN SUPPORT OF RESPONDENTS

MARC O. BEEM

(COUNSEL OF RECORD)

DIANE F. KLOTNIA

MICHAEL S. D’ORs!

MILLER, SHAKMAN, HAMILTON,

KURTZON & SCHLIFKE

208 SOUTH LASALLE STREET

SUITE 1100

CHICAGO, IL 60604

TELEPHONE: (312) 263-3700

FACSIMILE: (312) 263-3270

ELAINE R. JONES

DIRECTOR-COUNSEL

THEODORE M. SHAW

ASSOCIATE DIRECTOR-COUNSEL

GEORGE H. KENDALL

LAURA E. HANKINS

NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC.

99 HUDSON ST. - SUITE 1600

New YorK, NY 10013-2897

TELEPHONE: (212) 965-2200

Attorneys for Amici Curiae

A.

TABLE OF AUTHORITIES

STATEMENT OF INTERESTS OF AMICI

SUMMARY OF ARGUMENT

TABLE OF CONTENTS

I. THE GANG LOITERING ORDINANCE

IS UNCONSTITUTIONALLY VAGUE

The Ordinance Impermissibly Leaves

Enforcement To The Unconstrained

Predilections Of The Police

l.

The ordinance vests an officer with

unfettered discretion to conclude that

a person does not have an “apparent

purpose” and is therefore “loitering” .. .

The ordinance vests an officer with

unfettered discretion to conclude that

a person is “loitering with” a suspected

SE sins baa Ket dotnesees

The ordinance vests an officer with

unfettered discretion to conclude that

a person has failed to “move on” ......

The Ordinance Fails To Provide Actual

Notice Of What Conduct Is Prohibited

Il. THERE IS NO REASON TO ABANDON

THE PAPACHRISTOU-KOLENDER STANDARD ...

eee eeevreeeeee

“eee ee eeeeennereene

ii

Ill. THE GANG LOITERING ORDINANCE IS

POOR POLICE PRACTICE AND THERE IS

NO REASON TO BELIEVE IT WAS OR

WOULD BE EFFECTIVE .......cccccsccccceees 22

IV. THERE IS NO REASON TO BELIEVE THAT

THE GANG LOITERING ORDINANCE WAS

EFFECTIVE IN REDUCING GANG CRIME

a

TABLE OF AUTHORITIES

Cases

Avent v. North Carolina,

Pe PORNO. 6s ccweccs ide des ccadeces

Bell v. Bolger,

708 F.2d 1312 (8th Cir. 1983) .... 06... cece ee

Bowen v. Kemp,

769 F.2d 672 (11th Cir. 1985) ..... 2.0... e eee,

Castaneda v. Partida,

ED cc0dvovcenecesdeceseess

Chicago v. Morales,

SEU MEEREDED ccvcccccccececceséoucs

City of Richmond v. J.A. Croson Co.,

CRMEEEEEEED ScScccccdcccceccececdes

Coates v. Cincinnati,

SPE EEEUED Scccscccvcvoccesdecvece

Colten v. Kentucky,

GP EEMEOEUNUED coecoceccvcccsusececes

Eccleston v. Secretary of Navy,

700 F. Supp. 67 (D.D.C. 1988) ..........6645.

Garner v. Lousiana,

I

Kolender v. Lawson,

EE .<.csdegke cn bdteonadecs

iv

McWilliams v. Escambia County School Bd.,

658 F.2d 326 (Sth Cir. Unit B 1981) ............... 20

Oncale v. Sundowner Offshore Servs. Inc.,

7 & fd rrr er. 20

Papachristou v. City of Jacksonville,

GP as BRON Reccicccdedecisededsase passim

Peterson v. City of Greenville,

PP ED -ovccccvcccececgs sted obese 2

Shuttlesworth v. City of Birmingham,

PC EEE 6c cvdec cc cen cduddetucceuseems 2

Smith v. Goguen,

SED cccescdccccescdbtVesceoeeue 9

Tennessee v. Garner,

Gee es DEED. c eek seed eroncesciivicinvdoesia 2

Thompson v. City of Louisville,

SE MEE «6 cudavecesectesasbon euses 2

United States v. Thomas,

787 F. Supp. 663 (E.D. Tex. 1992) ..............4. 20

West Virginia State Bd. of Educ. v. Barnette,

RR ee ee eee et 21

Winters v. New York,

rt § , aa er eee 8

Wright v. Georgia,

PO SGD cosveccccuccedt Witenes sound 2

Statutes and Rules

EME civaduc ccdduscsvcesnesesees l

Sandra Lee Browning, et al., Race And Getting

Hassled By The Police: A Research

Note, 17 Police Studies 1 (1994). ................. 19

Knight Chamberlain, Cooperation Cuts Crime,

Raleigh News & Observer, Jan. 5,

Chicago Community Policing Evaluation Consortium,

An Interim Report (Nov. 1997) .............6.6.. 28

James H. Colopy, The Road Less Traveled; Pursuing

Environmental Justice Through Title V1 of the

Civil Rights Act of 1964, 13 Stan. Envtl. LJ.

SP ia debts dhb CU eds ewded ed ceecessces 21

Richard M. Daley & Terry G. Hillard,

Gang and Narcotic Related Violent

Crime: City of Chicago 1993-1997

Dt dctiticededelekti Gages eveconcepesess 24, 28

Paula Dittrick, Police Chiefs Discuss Race Relations,

vi

Editorial, More Citizen Involvement Helps Keep Boise

Streets Safe, \daho Statesman, June 19,

Herman Goldstein, Toward Community - Oriented

GOUUTD cawcccbededcctcacadcengeccncsewdeh ize 21

Judith A. Green, Zero Tolerance: A Case Study

of Police Policies and Practices in New York

City, Crime & Delinquency (forthcoming

Po BE TEER IE Et POT eT eee 23

Robert Ingrassia, Police Shooting Was Dallas

Turning Point, Dallas Morning News,

wa SG Chak es ceebs 0haA4 bide ceedeeee 4

Jay Jochnowitz, Arbor Hill Station Hits Roadblock,

ee ee a EE USS we hehe dcccdcedceces 4

Dirk Johnson, Two Out of Three Young Black

Men In Denver Listed By Police as

Suspected Gangsters, N.Y. Times,

DD, is CNW cn own CURE ER cds he wsideci 11-12

George Kelling & Katherine Coles, Fixing Broken

or ere ee 26

David Kennedy, Pulling Levers: Getting Deterrence

Right, Nat’! Inst. Just. J. (July 1998) ............... 23

Leon F. Litwack, Trouble in Mind: Black Southerners

in the Age of Jim Crow (1998)... .. 2... ccc c ccc eues 3

Debra Livingston, Police Discretion and the Quality of Life

in Public Places: Courts, Communities and the

New Policing, 97 Colum. L. Rev. 551 (1997) ..... 21, 26

vii

Tracey L. Meares, Social Organization and Drug Law

Enforcement, 35 Am. Crim. L. Rev. 191 (1998) ...... 28

Mark H. Moore, Problem-Solving and

Community Policing in Modern

Policing 1992 (Crime & Justice

A Review of Research Series \so.

15, 1992, M.Tonry & N. Morris, eds.) .......... 21, 23

Deposition Transcript of Thomas Needham in

ACLU v. City of Chicago, 98 CH 10054

(Circuit Court of Cook County, Illinois) ............ 13

David Ogul, White Police and Black Community a

Mix that Works, Press-Enterprise (Riverside,

a a a. awk con enee 4

Robert Olmstead, Cops taking EDGE

in Crime Battles, Chi. Sun-Times,

iit idecne dis bedatipns dhnqeue se 16

Hartford Courant, Jan. 30,1998 ...............005- +

Ira Reiner, Gangs, Crime and Violence

in Los Angeles: Findings and

Proposals from the District Attorney's

PP ptitathigeiiiebecregusdedacoasees< 12

Janet Reno, Civil Rights: A Challenge of Conscience,

27 Cumb. L. Rev. 381 (1996/1997) ................. 7

Report of the National Commission on Civil Disorders,

DD Bb dn sdnnsHeebed pkokeapsbensecences 23, 26

Dennis P. Rosenbaum, et al., The Prevention of Crime:

Social and Situational Strategies, (1998). ..... 19, 22, 23

viii

Andrew D. Russell, Portland Minorities, Police Try

to Bridge Deep Cultural Abyss, Portland

Prees Herald, Dec. 9, 1996 .......cccscccevevees

Peter M. Shane, School Remedies and the

Fair Governance of Schools, 132 U. Pa. L. Rev.

| Peer Pree T TT eet TA Tee

Fran Spielman, Daley to Simon: Quit

“Nitpicking” Over Crime Bill,

Chi. Sun-Times, Sept. 1, 1994.......... 0.000000.

Fran Spielman, Loitering Ban Passes; Alderman

Bitterly Split on Anti-Gang Measure,

Chi. Sun-Times, June 18, 1992 ..................

Sweep Nets 100 Arrests, Chi. Sun-Times, Feb. 6, 1994 ....

Randy Tucker & Jena Janovy, Little Police, Minority

Trust Seen Police-Community Relations

Problems, Omaha World-Herald, Sept. 1,

SOO bc bce ecsed nee ewes beeN eb USbb sé cowecece

Matthew Waite, Kids Learn Cops ‘Do More than Shoot.’

Ark. Democrat-Gazette, Aug. 14, 1997............

Hubert Williams & Patrick V. Murphy, The Evolving

Strategy of Police: A Minority View, in Perspectives

on Policing (U.S. Dept. of Justice, Nat’!

Inst. of Justice No. 13, Jan. 1990) ................

1

STATEMENT OF INTERESTS OF AMICF’

Amici, a unique coalition of a national civil mghts legal

organization and law enforcement professionals, are brought

together by their mutual interest in building strong relationships

between the police and the communities they serve, in minimizing

police and community residents, and in eliminating discriminatory

enforcement of criminal laws.

The National Black Police Association (“NBPA”) is an

organization of minority law enforcement professionals. NBPA

has more than 34,000 individual members and more than 140

chapters in police departments in 34 states and the District of

Columbia. The Chicago chapter of NBPA joins this coalition as an

amicus. NBPA and its members support the philosophy of

community policing that calls for a true, cooperative partnership

between the community and the police for safer communities.

The Hispanic National Law Enforcement Association

(“HNLEA”) is a nationwide organization of Latino American

police officers. HNLEA has local chapters in all major cities

throughout the United States, as well as three chapters in Puerto

Rico. Congress has recognized HNLEA as the only national

organization representing Latino officers. Members of HNLEA

are dedicated to the promotion of justice, fairness and effectiveness

in law enforcement. One of its primary missions is to improve the

relationship between minority communities and the police in order

to promote the safety of the public and the quality of life in those

communities. As part of that mission, HNLEA seeks to eliminate

police brutality and racial discrimination in law enforcement.

Pursuant to this Court's Rule 37.3(a), letters of consent from all parties

to the filing of this brief have been filed with the Clerk. Pursuant to this Court's

Rule 37.6, amici state that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than amici, their members,

or their counsel made a monetary contribution to the preparation or submission

of this brief.

The NAACP Legal Defense and Educational Fund, Inc.

(“LDF”) is a non-profit corporation (established in 1940)

organized to assist African Americans in securing their

constitutional and civil rights. Its purpose includes rendering legal

aid without cost to African Americans suffering injustice by reason

of race who are unable, on account of poverty, to employ legal

counsel on their own. For almost sixty years, its attorneys have

represented parties and have participated as amicus curiae in this

Court and in the lower state and federal courts.

LDF has a long-standing concern with the influence of racial

discrimination in the enforcement of loitering ordinances. It has

successfully challenged ordinances similar to the one at issue here

when they have been arbitrarily employed against civil mghts

demonstrators; see, e.g., Shuttlesworth v. City of Birmingham, 382

U.S. 87 (1965); Garner v. Lousiana, 368 U.S. 157 (1961);

Peterson v. City of Greenville, 373 U.S. 244 (1963); Avent v. North

Carolina, 373 U.S. 375 (1963), and against minority citizens

lawfully enjoying public spaces, Wright v. Georgia, 373 U.S. 284

(1963); Thompson v. City of Louisville, 362 U.S. 199 (1960).

LDF’s continuing concern over the arbitrary and destructive use of

police power led it to represent the respondent in Tennessee v.

Garner, 471 U.S. 1 (1985).

It is not often that amici find ourselves in complete agreement

about the lawfulness and wisdom of a criminal ordinance. But we

do in this case. The Chicago Gang Loitering Ordinance is a broad,

standardless law that invites arbitrary and discriminatory

enforcement. The Court has seen laws like this before and has

properly struck them down as unconstitutional.

Amici are concerned about the impact of such laws upon

effective law enforcement. For much of our history, law

enforcement has lacked credibility in minority communities

because of racist and arbitrary enforcement of the law. Scholar

Leon F. Litwack recalls accurately how many African Americans

came to view police earlier this century:

3

From the very outset of their lives, young blacks came to

learn that in the New South the differences between justice

and injustice, the law and lawlessness, were at best

ambiguous, at worst senseless, so blurred as to be

indistinct. The ways in which they experienced the courts

and police power were hardly calculated to enhance their

respect for the law or for the white man’s sense of fair

play. The very relationship black people bore to

protective agencies contrasted sharply with that of whites.

Even as white children were inculcated with the image of

the policeman as a friend and protector, black children

learned to fear him as the enemy.

Leon F. Litwack, Trouble in Mind: Black Southerners in the Age

of Jim Crow 15 (1998).

And while we have made progress in bridging this divide, it is

just as clear that we have much work yet to do. An overwhelming

body of evidence confirms that deep mistrust remains between

minority communities and the police. In recent years, Minneapolis

police chief Robert Olsen characterized relations between his

department and minority citizens as “a tinder box,”” Nashville

police chief Emmett Turner acknowledged strained relations

between police and minority citizens,” and Portland’s police chief,

Michael Chitwood, noted that “every time the police interact with

the minority community there’s a perception that they're being

¥ Paula Dittrick, Police Chiefs Discuss Race Relations, United Press Int'|,

Sept. 26, 1996.

y Associated Press, Black Nu *hvillians Leery of Police Conduct, Memphis

Comm. App., Aug. 28, 1997, at A18.

4

picked on.”* In light of those statements, it is not surprising that

Attorney General Janet Reno concluded that:

[a] crucial item on the [Department of Justice's] agenda

... isan effort to build a greater sense of community and

trust between law enforcement and the minority

community. There is no other area where the potential for

misunderstanding and miscommunication can have such

dangerous consequences. . . . So it is an absolute

imperative that we establish better trust, cooperation and

communication between the community and the police.

Janet Reno, Civil Rights: A Challenge of Conscience, 27 Cumb.

L. Rev. 381, 393-94 (1996/1997).

: Andrew D. Russell, Portland Minorities, Police Try to Bridge Deep

Cultural Abyss, Portland Press Herald, Dec. 9, 1996, at 1A.

From coast to coast, other cities have reported similar tensions. Public

officials in Albany, New York recently reported that many minority citizens

“don’t trust the police.” Jay Jochnowitz, Arbor Hill Station Hits Roadblock,

Times Union, Oct. 8, 1996, at BS. Recent shootings of minority citizens in Boise,

Charlotte, Little Rock and Lima, Ohio, have strained police-community relations.

See Editorial, More Citizen Involvement Helps Keep Boise Streets Safe, \daho

Statesman, June 19, 1998, at 12a; Knight Chamberlain, Cooperation Cuts Crime,

Raleigh News & Observer, Jan. 5, 1997, at B1; Matthew Waite, Kids Learn Cops

‘Do More than Shoot,’ Ark. Democrat-Gazette, Aug. 14, 1997, at 1A; David

Ogul, White Police and Black Community a Mix that Works, Press-Enterprise

(Riverside, CA), Oct. 6, 1996, at AOS. Dallas police officers conceded that the

Afncan American community is repeatedly “bombarded with officers conducting

illegal searches, approaching black and Hispanic males and placing them on the

ground.” Robert Ingrassia, Police Shooting Was Dallas Turning Point, Dallas

Morning News, Oct. 27, 1996, at 1A. Hartford police chief Edward Brymer noted

recently that “[t)here has been resentment toward police officers accused of

harassing minorities and using excessive force.” Colin Poitras, Nominee Plans

Visibility in Job, Hartford Courant, Jan. 30, 1998, at B!. Recently, the Omaha

Human Relations Board concluded that minorities do not have much trust in the

police, and “feel mistreated or harassed by the police because of their race.”

Randy Tucker & Jena Janovy, Little Police, Minority Trust Seen Police-

Community Relations Problems, Omaha World-Herald, Sept. 1, 1998, at News-1.

5

The Chicago ordinance will only exacerbate traditionally

strained relations between minority communities and police.

While amici are well aware of the many problems that gangs can

visit upon a community, we cannot endorse this particular tool that

will harm both community-police relations and the detection and

prevention of crime.

SUMMARY OF ARGUMENT

Chicago’s broad Gang Loitering Ordinance (the “ordinance”’)

is unconstitutionally vague under long-established standards of this

Court. It fails to define in any meaningful way the conduct that is

prohibited. It leaves to an officer’s unfettered discretion the

decision as to whether to deem conduct an “apparent purpose,” or

“movement” out of the “area” sufficient to satisfy the ordinance.

As in Kolender v. Lawson, the ordinance “may permit a

standardless sweep that allows policemen, prosecutors and juries

to pursue their personal predilections.” 461 U.S. 352, 358 (1983).

It provides a tool for “harsh and discriminatory enforcement by

local prosecuting officials against particular groups deemed to

merit their displeasure.” Jd. at 360. The ordinance is simply

another version of the abusive and discriminatory “street sweeps”

that have been condemned uniformly by the courts and

commentators as unconstitutional and ineffective.

There is nothing about the ordinance, contemporary law

enforcement or current circumstances that warrants departure from

the well-settled body of law applied by the Illinois Supreme Court

in finding the ordinance unconstitutionally vague. Contrary to the

assertions of certain amici for Chicago, discrimination in law

enforcement remains a matter of real and grave concer.

Standardless laws such as the ordinance, which leave enforcement

to the unguided discretion of the police, exacerbate the risks of

discriminatory enforcement. They also heighten the risk of

damaging relations between the police and the community

resulting from the perception of discriminatory enforcement.

6

Chicago and certain of its amici assert that the potential for

abuse of the ordinance need not concern the Court because the

ordinance enjoys some community support and is a manifestation

of “community policing.” Pet. Br. 14-15. They contend that

effective community policing requires that the courts “provide

greater leeway” for state and local governments to address “signs

of chronic disorder on the streets.” Pet. Br. 15; Amicus Brief of 20

Neighborhood Organizations (“CNO Br.”), passim. Chicago and

its amici further assert that Chicago’s experience with the

enforcement of the ordinance from 1992 to 1995 “validated” its

effectiveness. Pet. Br. 16. Each of those propositions is incorrect.

The ordinance is, in fact, the antithesis of community policing

and of sound law enforcement practice. Two of the most important

pillars of community policing are the strengthening of

relationships between police and community residents, and the

employment by police of a wide range of alternatives to the

traditional law enforcement strategies of arrest and prosecution,

saving traditional law enforcement for those cases in which it can

do the greatest good. The ordinance is contrary to both principles.

Rather than eschew traditional law enforcement strategies in

favor of more innovative, flexible approaches to the community's

problems, the ordinance directs the police to arrest and prosecute

thousands. The City’s statistics show that there were in excess of

41,000 arrests under the ordinance during the three years of its

enforcement. Contrary to Chicago’s repeated suggestion that the

ordinance targets only “visibly lawless” behavior (Pet. Br.,

passim), in fact, the ordinance targets otherwise innocent behavior.

The net cast by the ordinance is extremely wide, sweeping into the

criminal justice system large numbers of people who are guilty of

no crime other than standing, sitting or remaining in one place on

the public sidewalks, in public parks, or in other public places, in

the vicinity of a suspected gang member and in a manner that

piques an officer’s antipathy. The ordinance thus significantly

multiplies the number of hostile, adversarial interactions between

the police and citizens, principally minority citizens. Rather than

7

strengthening relations, the ordinance widens the gulf between

police and community.

Nor does Chicago’s experience “validate” the efficacy of the

ordinance. The crime statistics for the City of Chicago for the

relevant periods do not show that enforcement of the ordinance

reduced crime. Since 1992, there has been a nationwide decrease

in crime in communities of all types and sizes using all sorts of

law enforcement techniques. This decline has been attributed to a

variety of factors, none of which is precisely understood. What is

clear, though, is that there is no empirical basis for concluding that

enforcement of the ordinance had any effect on crime. The drop in

the crime rate began before Chicago enforced the ordinance and

continued after it ceased enforcement.

While gang crime is unquestionably a serious problem, it is not

necessary to suspend constitutional principles to address it. The

Chicago Police Department's representative at City Council

hearings on the ordinance acknowledged that fact, and the

experience of cities, like San Diego and Boston, confirms it.

Those cities have achieved substantial reductions in crime without

the use of extreme measures like the Gang Loitering Ordinance.

ARGUMENT

I.

THE GANG LOITERING ORDINANCE

IS UNCONSTITUTIONALLY VAGUE

A consistent theme throughout the briefs of Chicago and its

amici is their concern about gang-related crime and the detrimental

effect criminal gang activity has on the surrounding community.

These amici, as law enforcement professionals and members of

communities that are disproportionately affected by gang crime,

share those concerns. Unfortunately, those concerns are not new,

and neither is Chicago’s approach to them. The desire to prevent

and combat crime has been the articulated rationale for other

loitering and vagrancy laws previously considered by the Court,

including the statute at issue in Kolender. But, as the Court

admonished in that case, the desire to combat crime cannot

suspend constitutional protections against vague laws. As Justice

O'Connor noted:

Appellants stress the need for strengthened law

enforcement tools to combat the epidemic of crime that

plagues our Nation. The concern of our citizens with

curbing criminal activity is certainly a matter requiring the

attention of all branches of government. As weighty as

this concern is, however, it cannot justify legislation that

would otherwise fail to meet constitutional sundards for

definiteness and ciarity.

Kolender, 461 U.S. at 361.

This Court’s emphasis on definiteness and clarity stems from

long experience with abusive and discriminatory enforcement that

too frequently accompanies standardless or imprecise laws:

“These [vagrancy] statutes are in a class by themselves, in

view of the familiar abuses to which they are put... .

Definiteness is designedly avoided so as to allow the net

to be cast at large, to enable men to be caught who are

vaguely undesirable in the eyes of police and prosecution

although not chargeable with any particular offense. In

short, these ‘vagrancy statutes’ and laws against ‘gangs’

are not fenced in by the text of the statute or by the subject

matter so as to give notice of conduct to be avoided.”

Papachristou v. City of Jacksonville, 405 U.S. 156, 166

(1972)(quoting Winters v. New York, 333 U.S. 507, 540 (1948)

(Frankfurter, J., dissenting)).

This Court has long made clear that an ordinance /ails to meet

constitutional standards of “definiteness and clarity” not only

where the ordinance fails to provide adequate notice so that

“ordinary people can understand what conduct is prohibited,” but

more importantly, where the legislature has failed to “‘establish

minimal guidelines to govern law enforcement.’” Kolender, 461

U.S. at 357-58 (quoting Smith v. Goguen, 415 U.S. 566, 574

(1984)). “Where the legislature fails to provide such minimal

guidelines, a criminal statute may permit ‘a standardless sweep

[that] allows policemen, prosecutors, and juries to pursue their

personal predilections."” Jd. at 358 (quoting Smith, 415 U.S. at

575). Chicago's ordinance does not meet that standard.

A. The Ordinance Impermissibly Leaves Enforcement

To The U ined Predilections Of The Police

The “more important aspect of the vagueness doctrine, ‘is

... that a legislature establish minimum guidelines to govern law

orcement.’” Kolender, 461 U.S. at 358 (quoting Smith, 415 U.S.

at 574). Chicago contends that the ordinance satisfies this

important requirement because it applies only to persons who (1)

do not have an apparent purpose, (11) are loitering with a person

reasonably believed to be a gang member, and (111) fail to move on

when ordered to do so. Pet. Br. 34-35. Contrary to Chicago's

assertion, however, the ordinance, “by failing to describe with

sufficient particularity what a suspect must do in order to satisfy

the statute,” /d. at 361], encourages arbitrary and discriminatory

enforcement in precisely the manner as did the laws this Court held

unconstitutional in Papachristou and Kolender. Specifically, the

ordinance provides no guidelines as to (i) what constitutes loitering

-- "hat is, what is or is not an “apparent purpose,” (ii) what persons

are considered to be ““with” a suspected gang member, and (iii)

what action will satisfy an order to “move on.”

1. The ordinance vests an officer with unfettered

discretion to conclude that a person does not have an

and te hemiee Saletan “

The ordinance defines loitering as “remain{ing] in any one

place with no apparent purpose.” Pet. App. ¢ ia. Chicago and its

amici argue that the ordinance does not vest the police with

unfettered discretion to determine whether a person is “loitering.”

10

However, the Illinois Supreme Court found to the contrary,

“absolute discretion . . . to decide what activities constitute

loitering.” Pet. App. 15a. That decision was clearly correct.

Chicago’s descriptior: of the “no apparent purpose”

requirement as “straightforward[]” (Pet. Br. 30) is contradicted by

its confusing assertions in this Court and elsewhere as to what

would or would not be an “apparent purpose.” For example,

park bench or simply chatting with friends is not. See Pet. Br. 38;

Supp. R. II at 231. Chicago does not point to anything in the

ordinance (or elsewhere) that would lead an officer to draw those

distinctions.

Further, the fact that two persons are “chatting” should be

apparent to the outside observer. To conclude, as Chicago

suggests (Pet. Br. 38), that chatting is not an “apparent purpose”

really means that “chatting” is not an acceptable purpose under the

unacceptable. The officer, therefore, is required to bring to bear

his or her own personal predilections to conclude that “chatting”

or “sitting,” ee

Chicago's own examples make clear that what is a “purpose” and

what is “apparent” Seat absolute discretion.

It is precisely such subjective, standardless discretion that

results in enforcement decisions that may vary arbitrarily not only

from officer to officer but from decision to decision by the same

officer. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 614 (1971)

(holding ordinance void for vagueness where violation may have

depended entirely on whether a particular officer was annoyed by

conduct of persons subject to the ordinance); Kolender, 461 U.S.

at 360-61 (holding loitering ordinance void for vagueness where

officers had complete discretion to conclude whether suspects had

ll

shown “credible and reliable’ identification”); Papachristou, 405

U.S. at 170-71 (holding vagrancy law unconstitutionally vague

where the ordinance provided imprecise standards for enforcement,

thus allowing persons to stand on public sidewalks, etc. only at the

whim of the police). The “no apparent purpose” requirement is so

amorphous that Chicago is even unwilling to state without

equivocation that a parade or picketing is a clearly apparent

purpose falling outside of the proscriptions of the ordinance. See

Pet. Br. 10, 20 (acknowledging only that the ordinance would

“rarely, if ever” apply to parades, picketing or protests).*

2. The ordinance vests an officer with unfettered

discretion to conclude that a person is “loitering

ith” ted g : b

The ordinance is imprecise in yet another way. The ordinance

applies not only to persons reasonably believed to be gang

members, but also to all persons who are deemed to be “with” a

“loitering” gang member. While Chicago focuses on “street gang

members and their cohorts” (Pet. Br. 9), the ordinance is clearly

not so limited.* It applies to any and all persons with a “loitering”

: Even the Solicitor General is unable to discern what constitutes an

“apparent purpose” under the ordinance. In his amicus brief in support of the

ordinance, the best that the Solicitor General can do 1s to suggest what the term

loitering would “likely” include and would “not likely” include. See Amicus

Brief of the United States (“U.S. Br.”) at 16. Chicago and the Solicitor General

reach different conclusions about what is or is not included. Whereas Chicago

leaves open the possibility that picketing and protests may be subyect to the

picketing “will be apparent to outsiders” and thus beyond the ordinance. U.S. Br.

13.

Even if its proscriptions were limited to persons believed by police to

be gang members, the ordinance could encompass a substantial number of the

young people in many communities -- particularly minority youth. In Denver, for

example, African American and Hispanic youths dominated a list of suspected

gang members compiled by police. The list itself was so large that it included

approximately two-thirds of the African American males in the city between the

ages of |2 and 24. Dirk Johnson, Two Out of Three Young Black Men In Denver

(continued...)

12

individual reasonably believed by the police officer to be a gang

the suspected gang member and other persons, supplies no

guidelines for an officer to use to determine whether a person 1s

“with” the suspected gang member, as opposed to merely being

near or in the general vicinity of a suspected gang member.”

This absence of legislative standards leaves the officer with

absolute discretion in enforcement. For example, according to

Chicago, the presence of a single gang member in a public

playground with 99 other non-gang members is sufficient to

authorize an officer to order the entire group of 100 persons to

disperse and to arrest any who refuse to do so. See Supp. R. II at

229-30. This is true, as discussed below, even if the other 99

persons have no knowledge that a suspected gang member is

present in the public playground. It may well be unlikely that the

police would oust or arrest 99 people because of the presence of a

single suspected gang member. The ordinance permits it, however,

and the decision as to how many and which of the 99 to threaten

with arrest 1s left wholly to the whim of the officers.

3. The ordinance vests an officer with unfettered

discretion to conclude that a person has failed to

The ordinance further provides that an officer shall order

persons in violation “to disperse and remove themselves from the

*(._.continued

Pe oe ~~ Y. Times, Dec. 11, 1993, at A-8. In

Los Angeles in 1992, 47% of the African American males between the ages of 2!

and 24 were listed on a gang database maintained by the police. Ira Reiner,

Gangs, Crime and Violence in Los Angeles: Findings and Proposals from the

District Attorney's Office \2\ (1992).

2 The Solicitor Generai contends that the ordinance 1s limited to “gang

members or those who participate in groups containing gang members.” U.S. Br.

10. The ordinance, however, imposes no requirement of participation. Rather,

it applies by its terms to all persons “with” a “loitering” suspected gang member.

13

area,” what Chicago commonly refers to as a “move on” order.

Pet. App. 61a. While Chicago contends that the “move on” order

is clear and cannot be misunderstood (Pet. Br. 29), that is not so.

The “move on” order is yet another unclear element of the

tiecri¢ni ,

For example, the ordinance provides no guidelines as to how

far one must move in order to be removed “from the area.” The

“area” is not defined geographically or even conceptually. There

is no gauge by which either the police officer or the citizen can

determine whether it would be sufficient to move across the street,

down the street, out of a park, or to another neighborhood

entirely* Nor does the ordinance provide any guidance as to the

length of time that a person must remove himself or herself from

the area in order to avoid arrest -- ten minutes? An hour? A day?

The ordinance does not provide either the officer or persons

subject to the ordinance with answers to these very basic questions.

In this manner, the “move on” order is critically different from

the directive issued by the officer in Colten v. Kentucky, 407 U.S.

104 (1972). In Colten, the Court determined that a person could be

ordered to “move on” where he was interfering with an officer

issuing a traffic citation. The Court agreed that the order was

“suited to the occasion.” Jd. at 109-10. Unlike “move on” orders

under the ordinance here, in Colten one could easily understand,

based on external clues provided by the occasion itself. that “move

on” meant to remove onself from the immediate vicinity of the

traffic incident for so long as it took the officer to issue the citation

’ The “area” could be very large. A city representative testified in a

lawsuit brought by the ACLU under the IIlinors Freedom of Information Act that

locations designated for enforcement of the ordinance included parks and public

housing developments. Deposition Transcript of Thomas Needham at 86, filed

with the Circuit Court of Cook County, Illinois in ACLU v. City of Chicago, et al,

98 CH 10054. Some of Chicago's parks extend for miles and others are as large

as many square blocks. Chicago's public housing developments may also be many

acres in size, and may be home to persons told to leave the areas.

14

There are no such external limitations provided, however,

where one is ordered to remove oneself “from the area” pursuant

to the ordinance. There is no apparent geographic boundary that

delineates the “area” or that establishes what would be a sufficient

distance to avoid arrest. Nor is there an objective time limit that

would indicate when one could return to the public area and not be

subject to arrest. The officer has complete discretion to define the

public area from which the citizen is excluded on pain of arrest and

the duration of that exclusion. Such untrammeled power to banish

any person deemed by the arresting officer to be undesirable

understandably prompted one of Chicago’s African American

aldermen to say during City Council hearings that the ordinance is

reminiscent of the “pass laws of South Africa.” Fran Spielman,

Loitering Ban Passes; Alderman Bitterly Split on Anti-Gang

Measure, Chi. Sun-Times, June 18, 1992, at A-1.

B. The Ordinance Fails To Provide Actual

The ordinance fails to provide citizens with actual notice so

that “ordinary people can understand what conduct is prohibited.”

Kolender, 461 U.S. at 357. For example, the ordinance does not,

as discussed above, disclose what purposes the police may deem

unacceptable. That critical omission not only invites arbitrary and

discriminatory enforcement, but also leaves Chicago’s citizens

without any notice as to what behavior would be subject to the

ordinance.

Chicago argues that the “move on” order provides notice that

a person's conduct is subject to the ordinance. Pet. Br. 29. But, as

even Chicago concedes, “[i]f police officers are afforded

standardless discretion to order individuals to move on, the mere

fact a police order is given does not serve to sustain the order.”

Pet. Br. 32. As discussed above, the ordinance does give police

15

that discretion.* Given that the meaning of the ordinance is

defined by the “personal predilections” of the police, there is no

way that a person can know what conduct will lead to a police

order to “move on.”

Moreover, although a predicate for arrest under the ordinance

is the presence of a “loitering” suspected gang member, there is no

requirement that any other individual in that same public place be

on notice that a gang member is present. While Chicago focuses

on “gang members and their cohorts,” suggesting that a lack of

knowledge is not likely, the ordinance is not in any sense limited

to “cohorts.” As discussed above, Chicago acknowledges that the

mere presence of a single person reasonably believed by a police

officer to be a gang member with no apparent purpose in a public

playground with 99 other persons, none of whom are suspected of

being gang members, is sufficient to authorize the officer to order

all 100 persons to disperse and to arrest those who refuse to do so.

Although the ordinance expressly provides that the fact that no

gang member was present is an affirmative defense to prosecution

(Pet. App. 61a.), the fact that an arrested person had no knowledge

that a gang member was present apparently does not provide a

defense. And, as the Illinois Supreme Court found, a person “has

no way of knowing whether an approaching police officer has a

reasonable belief that the group contains a member of a criminal

street gang.” Chicago v. Morales, 177 Ill. 2d 550 (1997) (Pet. App.

1 la-12a.)

In less than three years, the police in Chicago ordered 89,000

people to “move on” from public places and arrested 41,000 of

them for failing to do so in a manner satisfactory to the arresting

, The fact that the conduct prohibited by the ordinance 1s defined by the

police officer on the beat is confirmed by Chicago's attempt to reassure this Court

that the ordinance is limited in scope. Remarkably, Chicago states that “anyone

can loiter alone, or even with others, including criminal street gang members, as

.” Pet. Br. 44 (emphasis added).

Thus Chicago concedes that one's right to stand in the streets or parks of Chicago

1s subject to the unforeseeable whim and caprice of the police

16

officers. This large number of arrests for conduct as innocuous as

standing on a public sidewalk” makes clear that the ordinance is

another version of the abusive and discriminatory “street sweeps

that have been consistently, and properly, condemned by courts

and commentators.’ The Illinois Supreme Court recognized the

true nature of the ordinance, noting that the City Council’s intent

in enacting the ordinance was to address gang members’ ability to

avoid arrest for crimes they commit by “craft[ing] an exceptionally

broad ordinance which could be used to sweep these intolerable

and objectionable gang members from the city streets.” Chicago

v. Morales, 177 Ill. 2d 440 (1997) (Pet. App. 16a.) Under the long-

standing precedent of this Court, the ordinance is unconstitutional.

Il.

THERE IS NO REASON TO ABANDON

THE PAPACHRISTOU-KOLENDER STANDARD

As explained above, and in the briefs of Respondents and their

other amici, the ordinance is plainly inconsistent with this Court's

established jurisprudence. Chicago implicitly recognizes that fact,

= Chicago repeatedly refers to “visibly lawless behavior” as the target of

the ordinance. See, e.g. Pet. Br. at 9-10, 12, 14, 16, 27. That is clearly not the

case. If the behavior was truly “visibly lawless,” the person would have an

apparent, albeit a lawless, purpose and thus would not, by definition, be

“loitering.” Moreover, if people are “visibly lawless,” they can be arrested under

the laws they are violating. For those situations, the ordinance is unnecessary.

It is clear that the ordinance intentionally targets behavior that is lawful or

innocent. Chicago implicitly concedes as much, stating that it seeks to move

persons on or arrest them to “prevent crime before it occurs.” Pet. Br. 10

(emphasis added).

- During 1994 Chicago used the ordinance to make wholesale arrests as

part of “Operation EDGE” in which more than 60 extra officers were assigned to

target areas for up to eight hours. Robert Olmstead, Cops taking EDGE in Crime

Battles, Chi. Sun-Times, July 5, 1994, at 14. In one Operation EDGE sweep in

the Englewood neighborhood, 100 people were arrested, 69 of them for gang

loitering. Sweep Nets /00 Arrests, Chi. Sun-Times, Feb. 6, 1994, at 4. During the

summer of 1994, there were more than 2400 arrests in connection with Operation

EDGE. Fran Spielman, Daley to Simon: Quit “Nitpicking” Over Crime Bill, Chi.

Sun-Times, Sept. 1, 1994, at 12.

17

referring the Court to “commentators [who] have repeatedly called

for courts to provide greater leeway for state and local

governments to address signs of chronic disorder on the streets.”

Pet. Br. 15. The CNO amicus brief, authored by one of those

commentators, is more forthright, asking this Court to abandon the

Papachristou-Kolender standard except for those cases in which

a law’s impact is directed at a “politically disempowered

minority.” CNO Br. 6. In all other cases, Chicago's amici urge,

this Court should apply a sliding scale of review that depends on

the extent to which members of the affected communities support

the challenged law and on the extent to which minority groups

subject to the law have achieved political empowerment. /d at 1 1-

16. They are wrong.

Although this Court recognized in Papachristou and Kolender

that vague, standardless laws have the potential for racially

discriminatory enforcement, the principles of those cases are race-

neutral and are properly focused on the specificity that due process

requires of all criminal laws, against whomever they may be

enforced. Indeed, contrary to the suggestions of Chicago's amici,

the facts of Papachristou were not limited to the arrest of a racially

mixed group of defendants, but also included the separate arrests

of several other defendants, whose race is not even identified. See

Papachristou, 405 U.S. at 159-61. This Court has reiterated that

standards of constitutional review are “not deperdent upon the race

of those burdened or benefitted.” City of Richmond v. J.A. Croson

Co., 488 U.S. 469, 494 (1989).

Chicago’s amici also suggest that this Court need no longer be

concerned about the reality and perception of abusive and

discriminatory enforcement that are fostered by standardless laws

al Chicago and its amici suggest, expressly and implicitly, that gang crime

cannot be addressed effectively without giving police this “leeway.” Even the

Chicago Police Department rejected that notion. In testimony at the City Council

Hearings, the Assistant Deputy Superintendent of Police testified that “there are

already enough laws in the books at this point [that address the street gang

problems), criminal laws, criminal penalties which are much different than the

ones that are articulated in the ordinance.” Supp. R. II at 181.

18

because racial minorities have achieved political empowerment.

CNO Br.11-12. While it is certainly correct that the political

influence of African American and Hispanic citizens is increasing

in some of America’s large urban areas, it is certainly not correct

that conflict between the police and minority communities is no

longer a concern.

As noted by former New York City Police Commissioner

Patrick Murphy and former Newark Director of Police Hubert

Williams:

[A]ithough the police are better prepared to deal with

residents of the inner city than they were 20 years ago,

they are far from having totally bridged the chasm that has

separated them from minorities - especially blacks - for

over 200 years. There are still too few black officers at all

levels. Racism still persists within contemporary police

departments. Regardless of rules and guidelines,

inappropriate behavior on the streets still occurs.

Complaints about differential treatment, patrol coverage

and response time persist.

Hubert Williams & Patrick V. Murphy, The Evolving Strategy of

Police: A Minority View, in Perspectives on Policing (U.S. Dept.

of Justice, Nat’! Inst. of Justice No. 13, Jan. 1990). See also

discussion, supra, at nn.2-4.

The concerns noted in Papachristou and Kolender have not

disappeared for the nation’s minority communities. The long

history of abuse of standardless laws by officers pursuing their

“personal predilections” has produced a lingering corrosive tension

between police and minority communities that law enforcement

19

professionals and commentators recognize as a major impediment

to effective law enforcement.“

Neither is there any reason for the Court to abandon settled

notions of due process because, as certain amici urge, the

ordinance was “enacted at the behest” of minorities. CNO Br. 14.

The argument of the CNO Brief is premised on two erroneous

propositions. The first is that the “minority community” speaks

with a single voice that is dispositive for purposes of constitutional

adjudication. There was and is substantial opposition to the

ordinance within Chicago’s minority communities. The ordinance

was enacted over the strong objection of most of Chicago's

African American aldermen and the editorial objection of the

Chicago Defender, Chicago’s principal African American

newspaper. See discussion in CANS Brief 3 - 6.“

CNO’s second erroneous premise is that once members of

minority communities attain a degree of political power,

discrimination will no longer be a matter of concern because

minority leaders will not practice or countenance discrimination

against “their own.” This Court rejected that analysis in

Castaneda v. Partida, 430 U.S. 482 (1977), a jury composition

challenge. The state argued that it was highly likely that the large

- A recent study reached the same conclusion, finding that “A frican-

Americans are more likely to perceive that they are both personally and

vicariously hassled by the police [that 1s, stopped or watched by the police when

they have done nothing wrong}. Again, nearly half of African-Americans had

been hassled personally and two-thirds knew someone who had been hassied

[‘vicariously hassled’}, while the figures for whites in both cases were about one-

tenth of those sampled.” Sandra Lee Browning, et a/., Race And Getting Hassled

By The Police: A Research Note, 17 Police Studies |, 8 (1994).

= The need to be alert to the diversity of interests within a community has

been noted by community policing experts. “Community, when used in the

context of policing, is problematic. . . . Practitioners and researchers alike have

discovered that the ‘community’ cannot be easily defined as a single,

unidimensional or monolithic social group. More often, there are many

‘communities of interest’ within a single neighborhood.” Dennis P. Rosenbaum

et al, The Prevention of Crime Social and Situational Strategies 191 (1998).

disparity between Mexican-American jury-eligible citizens and

those summoned for grand jury service was attributable to

something other than discrimination because Mexican-Americans

held many elective county offices.“ This minority empowerment,

Texas argued, made it unlikely that the disparity was linked to

racism because “Mexican-Americans would [not] discriminate

against their own kind.” 430 U.S. at 490. The Court rejected the

argument, concluding that “[b]ecause of the many facets of human

motivation, it would be unwise to presume as a matter of law that

human beings of one definable group will not discnminate against

other members of their group.” Jd. at 499.

The Casteneda rule was reaffirmed just last Term, in Oncale

v. Sundowner Offshore Servs., Inc., 140 L. Ed. 2d 201 (1998).

Referring to Casteneda, this Court noted that “in the related

context of racial discrimination in the workplace we have reyected

any conclusive presumption that an employer will not discnminate

against members of his own race.” 140 L. Ed. 2d at 206 (holding

that same-sex discrimination is actionable under Title VII).

- In Casteneda, the state based its argument on the fact that Mexican-

Americans were a majority of the county population, and controlled the county

politically. Even CNO does not suggest that Chicago's African American and

Hispanic communities control the city’s political structure.

a Subsequently, lower courts have consistently rejected the presumption

that minorities will not discriminate against other minorities. See, e.g., Bowen v.

Kemp, 769 F.2d 672, 688 (1 1th Cir. 1985); Bell v. Bolger, 708 F.2d 1312, 1315

n.3 (8th Cir. 1983); McWilliams v. Escambia County School Bd., 658 F.2d 326,

333 (Sth Cir. Unit B 1981); Eccleston v. Secretary of Navy, 700 F. Supp. 67, 69

(D.D.C. 1988); United States v. Thomas, 787 F. Supp. 663, 676 n.18 (E.D. Tex.

1992).

- This rule finds considerable support in academic writing. See Peter M.

Shane, School Desegregation Remedies and the Fair Governance of Schools, | 32

U. Pa. L. Rev. 1041, 1083-84 n.139 (1984); Edward Patrick Boyle, /1's Not Easy

Bein’ Green. The Psychology of Racism, Environmental Discrimination, and the

Argument for Modernizing Equal Protection Analysis, 46 Vand. L. Rev. 937, 966-

(continued...)

21

Finally, even if the ordinance did have the support of

majorities in the African American and Hispanic communities (and

there is no basis from which this Court could conclude that is the

case), and those communities controlled the politics of the City of

Chicago, it would not warrant this Court’s abandonment of the

fundamental proposition that due process requires criminal law to

be sufficiently definite so that police and citizens know what

behavior will be deemed unlawful. As this Court declared in West

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943);

“the very purpose of a Bill of Rights was to withdraw

certain subjects from the vicissitudes of political

controversy, to place them beyond the reach of

majorities and officials and to establish them as legal

principles to be applied by the courts. . . .[F]undamental

nghts may not be submitted to vote; they depend on the

outcome of no elections.”

“(...continued)

= n.38 tery James H. Colopy, The Road Less Traveled: Pursuing

vironmental Justice Through Title Vi of the Civil Rights Act of 1964, 13 Stan.

Envtl. L. J. 125, 136 (1994). rape gesen

= Scholars of community policing have cautioned that apparent support

“None of this is intended to make the police entirely subservient to communities

and their desires. The police must continue to stand for a set of values that

communities will not always honor. For example, the police must defend the

importance of fairness in the treatment of offenders and the protection of their

constitutional rights against the vengence of an angry community.” Mark H.

Moore, Problem-Solving and Community Policing in Modem Policing 1992, at

99-158 (Crime & Justice: A review of Research Series No. 15, 1992), M. Tonry

& N. Morris, eds.). Accord Debra Livingston, Police Discretion and the Quality

of Life in Public Places: Courts, Communities and the New Policing, 97 Colum.

L. Rev. 551, 658 (1997) (“police must resist rather than respond to community

mandates that would violate the constitutional nghts of others or require police to

act beyond their lawful authority”); and Herman Goldstein, Toward Community-

Oriented Policing: Potential, Basic Requirements and Threshold Questions, 33,

Crime & Delinquency 6 (1987).

iil.

THE GANG LOITERING ORDINANCE IS POOR

POLICE PRACTICE AND THERE IS NO REASON

TO BELIEVE IT WAS OR WOULD BE EFFECTIVE

It is widely recognized today that effective law enforcement

requires cooperation between the police and the communities they

serve in a mutual effort to solve problems of crime and community

safety. See, e.g., Rosenbaum ef al., supra, at 173-74. This

approach is commonly referred to as community policing.

Chicago and certain amici attempt to justify the “strong medicine,”

Pet. Br. 38, of the ordinance by claiming that the ordinance with its

broad arrest power is simply a manifestation of community

policing. They ask this Court to give Chicago “greater leeway,”

Id. at 17, and uphold the ordinance so that Chicago can address

gang crime in accordance with what it deems to be modern police

practice. But the ordinance is not an example of modern law

enforcement. It is yet another example of old-style law

enforcement measures rife with potential for abuse. Far from

being an expression of community policing, it undermines the

essential tenets on which community policing is founded and

invites the abusive, discriminatory enforcement that has

historically created barriers between police and minority

communities.

Central to community policing is the strengthening of

relationships between police and community residents. “At the

heart of the community policing model is the empirically

supported idea that the police are more effective in solving

neighborhood problems when they use the resources available in

the community than when they try to complete the task alone.”

Rosenbaum et al., supra, at 180. The same truth was recognized

by the Kerner Commission, which noted that,

[i]t is axiomatic that effective law enforcement requires

the support of the community. Such support will not be

present when a substantial segment of the community feels

threatened by the police and regards the police as an

occupying force.

Report of the National Commission on Civil Disorders (“Kerner

Commission Report”) 158 (1968).

A second fundamental tenet of community policing is the use

of innovative, flexible solutions to community problems that

unlike traditional law enforcement strategy, do not rely on arrest

and prosecution. As stated by Prof. Moore, “The challenge is to

use mechanisms other than arrests to produce resolutions and to

look outside the department as well as within for usable

operational capacity.” Moore, supra, at 121; see also Rosenbaum,

et al., supra, at 179.2

_ The ordinance undermines both of these fundamental

principles of community policing. Most importantly, the

ordinance is more likely to weaken than to strengthen police-

community relationships. The ordinance sweeps great numbers of

people not otherwise in violation of any law into the criminal

Justice system for merely standing around. The number of persons

caught within its wide net is staggering. Chicago's statistics show

- One notable example of apparently successful community Is

San Diego, which implemented a Neighborhood Policing vane ny do

1980's that emphasized alternatives to arrest and prosecution. During the period

from 1990-1995, serious crime in San Diego fell by 36.8%. The number of

misdemeanor and felony arrests in San Diego during the overlapping period of

1993-1996 also fell by 15%. Judith A. Greene, Zero Tolerance: A Case Study of

Police Policies and Practices in New York City, Crime & Delinquency

(forthcoming April 1999) (manuscript at |2). Another example is the Boston Gun

Project, which dramatically reduced gun violence among Boston gangs by

SNe et ese naan cantante Des Gate betanter he

cessation of gun violance ing up ‘pulli '

a ret ert Right, Nat’! inst. Just. J. (July 1998). Boston's

orcement of clear standards 1s in marked contrast standardless approach

of the ordinance. _

in Chicago during the year pnor to the enactment of the ordinance

exceeded 350,000, Mr. Cooper stated:

So what happened to those people. They all came

out the other end.

So, of course, that is a consideration for us

because that makes our job even more difficult if people

feel they can thumb their nose at us. If they feel so what,

if the police do come along and take us to the station, we

can get out on an I-bond. We will be back out on the

street before they do.

- The number of arrests increased dramatically throughout the three years

that the ordinance was enforced. According to statistics prepared by Chicago and

lodged with the Court, in 1993 there were 5,251 arrests under the ordinance, in

1994 there were 15,660 and in 1995 there were 22,056. See Richard M. Daley &

Terry G. Hillard, Gang and Narcotic Related Violent Crime: City of Chicago

1993-1997 (1998) (“Five Year Report”).

So what if we do have to go to court in a couple

of weeks. We go to court. The courts are so crowded.

They look at the case and they throw it out.

Supp. R. II at 176-77.

C *s tmpliols pendiction at te ent id

contempt for the police is borne out by the sheer number of people

who failed to comply with police orders. The fact that nearly half

of those who were ordered to move on were arrested for failing to

do so to the satisfaction of the arresting officer represents a

stunning number of citizens unwilling to heed a direct law

enforcement order. This can be interpreted in several ways: (i)

citizens resented the “move on” order in the face of their

apparently harmless behavior; (ii) citizens had tremendous

contempt for police generally; or (iii) police did not properly

explain the consequences of failing to obey the “move on” order.

In any case, the Chicago experience does not reflect successful

ay policing.

Another likely explanation for the large and increasing number

of arrests is that the officers simply did not notify citizens to

“move on” prior to taking them into custody. Instead they used the

ordinance as a pretext to arrest or to “sweep” the streets of persons

they deemed undesirable. Such street sweeps represent the

antithesis of modern community policing. The ordinance is not --

unlike Boston's Gun Proyect -- targeted to enforcement of clearly

defined standards of conduct. It is, rather, a continuation of a

standardless approach to policing that has been repeatedly

recognized as counterproductive since the Kemer Commission

Report examined the causes of civil disorder in 1968.

Indeed, the Kerner Commission's discussion of police attitudes

toward minority youth is apposite to this case:

Some conduct [by the police} -- breaking up of street groups,

youths, creating special tensions in the ghetto where the

average age is generally under 21.

Because youths commit a large and increasing proportion of

crime, police are under growing pressure from their

supervisors -- and from the community -- to deal with them

forcefully. “Harassment of youths” may therefore be viewed

by some police departments -- and members even of the Negro

community -- as a proper crime prevention technique.

Kerner Commission Report, supra, at 159.

Even the commentators relied on by Chicago and its amici

have recognized that “[s]}treet sweeps,” such as those invited by the

ordinance, are not effective or constitutionally permissible. For

example, George Kelling, explicating his earlier “Broken

Windows” theory, cautioned that “[s}weeps, inherently a short

term and legally marginal placebo, often worsen the situation for

residents and local police: they alienate innocent youths caught up

in them (as well as their parents), and are meaningless to real

troublemakers for whom an arrest is a minor irritant.” George

Kelling & Katherine Coles, Fixing Broken Windows 166 (1996).

Kelling further asserted that “the ideas presented in ‘Broken

Windows’ were antithetical to the use of ‘street sweeping’ tactics

targeted on ‘undesirables.’” /d. at 22. Similarly, Debra Livingston

has written that “{PlJolice scholars advocating focus on

neighborhood disorder also cautioned that employing resurrected

..Teform era methods to ‘sweep up,’ . . ot pale ester om

persons threatening some conception 0 ic was

dangerous, and contrary to the role for police that they endorsed.”

Livingston, supra note 18, at 581.

Chicago’s half-hearted attempt to wrap the ordinance in the

mantle of community policing cannot disguise the true nature of

the ordinance -- a mechanism that permits the police to conduct

street sv’eeps of precisely the sort that courts and responsible

commentators have correctly condemned as unconstitutional and

ner

IV.

THERE IS NO REASON TO BELIEVE THAT THE

GANG LOITERING ORDINANCE WAS EFFECTIVE

IN REDUCING GANG CRIME IN CHICAGO

Chicago contends that enforcement of the ordinance “had a

substantial effect on the level of gang-related violence in

Chicago.” Pet. Br. 16. That contention is echoed by several of the

City’s amici. E.g, Amicus Brief of National District Attorneys’

Association 11; CNO Br. 24. The United States, somewhat more

cautiously, asserts that the ordinance “appears to have had

significant impact.” U.S. Br. 2.

There is, however, no significant evidence that enforcement of

the ordinance produced any reduction in gang-related crime!

Chicago's own data flatly contradict its claim that “if fewer gang

members are loitering . . . fewer of them -- and innocent people

nearby -- will be shot to death.” Pet. Br. 16-17. Chicago

emphasizes that in 1995, the last year Chicago enforced the

ordinance, gang-related homicide in Chicago dropped more rapidly

than total homicides did. /d. Yet precisely the same trend

prevailed during the next two years, a period when the ordinance

was not being enforced.“ Apparently, suspension of the ordinance

- Whether the ordinance has an effect on crime does not, of course, affect

constitutional analysis. It would likely reduce crime if all young men between the

ages of 16 and 2! were confined, yet no one would suggest that such an approach

would be constitutionally permissible.

~ From 1995 to 1997, gang-related homicides dropped 13%, again a

steeper decline than the 8% drop in the overall homicide rate for that two-year

period. Chicago relies, in its Petition, on a contrast between homicide trends in

1995 and 1996: In the former year (when the ordinance was enforced), gang-

(continued...)

either reduced gang-related homicides or, more likely, it was

simply irrelevant to homicide levels that are driven by far more

complex phenomena.” None of the available evidence supports

Chicago’s claim that the ordirence reduced gang-related

homicides.

2(..continued)

shunt bamtsties Oh teaen ten Gaeitd For 1996, Chicago reports that gang-

related homicides rose by 7%, though total homicides were still falling. Pet. Br.

16. However, Chicago's claims reflected a short-term statistical aberration. The

following year, with enforcement of the ordinance still suspended, gang-related

homicides dropped 19%, a much steeper decline than the 4% drop in the overal!

homicide rate for that year. See Five Year Report at 4-5.

~ The latter view is held by the principal experts on the implementation

of community policing in Chicago. See Chicago Community Policing Evaluation

Consortium, Community Policing in Chicago, Year Four: An Interim Report

(Nov. 1997) (discussing numerous factors that contributed to Chicago's declining

crime rates but omitting any mention of the gang-loitering ordinance). The

published article Chicago cites, Tracey L. Meares, Social Organization and Drug

Law Enforcement, 35 Am. Crim. L. Rev. 191 (1998), relies exclusively on data

prepared in January 1996 and therefore takes no account of the downward trend

in gang-related homicides that continued after enforcement of the ordinance was

suspended. Viewed in light of the Police Department's own analysis of more

recent data, the out-of-date Police Department claims relied on in Meares’ article

no longer have any conceivable relevance.

2 In the new set of statistics that Chicago presents to the Court, Chicago

refers for the first time to offenses other than homicide, and claims that suspension

of the ordinance produced increases in 1997 in two selectively reported crime

categories: “gang related aggravated battery with a firearm” and “drive-by

shootings.” Br. 16 n.11 (referring to the Five Year Report). But the trend in these

two, highly particularized offense categories is on its face anomalous. If, as

Chicago's data suggests, gang-related aggravated battery with a firearm rose by

11% and drive-by shootings rose by 10% at a time when gang-related homicides

were declining by 19%, see Five Year Report at 5-7, then either the fatality rate

for reported shootings dropped precipitously during the year or, more likely, the

assumptions used to classify these ofiense reports changed significantly. There

are strong grounds to suspect that less serious cases excluded in the earlier year

(or perhaps not reported to the police) were reported and included in 1997. Even

accepting this self-serving and unverified data at face value, therefore, there is

ED CES ae ay ee ee ee eS

Chicago and its amici contend that criminal street gangs are

ushering in a new era in crime -- crime that cannot be controlled by

existing laws, crime that demands the type of drastic preventative

law that sweeps thousands of persons into the criminal justice

system for standing on a public sidewalk or other public place.

Chicago and its amici assure this Court that the constitutionality of

the ordinance cannot be doubted, particularly because it is

supported by members of the community. These arguments are

not new. The ordinance is no different than other laws this Court

has found unconstitutional. Indeed, this Court’s admonitions in

Papachristou easily could have been written expressly in response

to Chicago's Gang Loitering Ordinance:

The implicit presumption in these generalized vagrancy

standards -- that crime is being nipped in the bud -- is too

extravagant to deserve extended treatment. Of course,

vagrancy statutes are useful to the police. Of course they

are nets making easy the roundup of so-called

undesirables. But the rule of law implies equality and

justice in its application. Vagrancy laws of the

Jacksonville type teach that the scales of justice are so

tipped even-handed administration of the law is not

possible. The rule of law, evenly applied to minorities as

well as majorities, to the poor as well as the rich, is the

great mucilage that holds society together.

Papachristou, 405 U.S. at 171. Just as this Court correctly held in

Papachristou that the Jacksonville loitering law was

unconstitutional, the Illinois Supreme Court correctly held that

Chicago’s Gang Loitering Ordinance was unconstitutional.

24(._ continued)

consistent basis. This Court has never before based a change of constitutional

doctrine on unverified data that changes from month to month.

Accordingly, the judgment of the Illinois Supreme Court should be

affirmed.

Dated: September 11, 1998

Respectfully submitted:

Marc O. Beem*

Diane F. Klotnia

Michael S. D’Orsi

Miller, Shakman, Hamilton,

Kurtzon & Schlifke

208 South LaSalle Street

Suite 1100

Chicago, IL 60604

Telephone: (312) 263-3700

* Counsel of Record

Elaine R. Jones

Director-Counsel

Theodore M. Shaw

Associate Director-Counse]

George H. Kendall

Laura E. Hankins

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson St. - Suite 1600

New York, NY 10013-2897

Telephone: (212) 965-2200